Some Thoughts On Counsellors Of State

The Counsellors of State Bill cleared the House of Lords yesterday. Counsellors of State are members of the Royal Family who carry out the Sovereign’s functions if they are ill or absent from the United Kingdom, and this Bill would add the Earl of Wessex and the Princess Royal to the pool of people who are eligible to serve. [1]   

Under the Regency Act 1937, the Queen Consort and the first four people in line for the Throne who are of legal age are eligible to be Counsellors.[2] Because the Prince of Wales’ children are too young, the Duke of York and the Duke of Sussex remain on the roster. This is awkward given that neither one is a ‘working royal’ and Prince Harry also lives in America. While the King can excuse someone if they will be absent from the UK, he can’t substitute anyone in their place.

Historically, Counsellors have had a limited constitutional role. Sir Edward Ford, one of the late Queen’s Private Secretaries, once characterized them as “merely a piece of constitutional machinery – the nearest thing to a human rubber stamp that has perhaps yet been devised.[3]” Similarly, Lord Janvrin (another ex-Private Secretary) emphasized that “the Bill is about process and good administrative practice; namely, the expeditious execution of formal government business. It is not about policy matters or wider royal matters such as finances, programmes, major speeches or other royal activities which are the subject of continuous formal and informal discussion between the Government and the Palace.[4]

As a result, Counsellors have usually handled routine business such as signing state papers and holding Privy Council meetings. Last May, however, they opened Parliament for the first time.[5] Traditionally, Counsellors act in pairs, which is why Prince William was present alongside his father at the State Opening even though he did not read any of the Queen’s Speech.

Adding the Princess Royal and Prince Edward to the list will help ensure that neither Prince Andrew nor Prince Harry need to act as Counsellors. They will, however, retain their eligibility. Whether this compromise will satisfy the public remains to be seen. Although Prince Andrew has not served as a Counsellor since stepping back from royal duties, the fact that he remains one on paper is a perennial source of controversy. While much of this controversy is manufactured and ill-informed, it still has the potential to cause headaches for the Palace. Lord Berkeley tabled an amendment to the Bill to formally exclude Prince Harry and Prince Andrew, but he ended up withdrawing it in the face of opposition from the Government.

The present Bill addresses the most immediate problem, but there are other issues that warrant consideration. Given the limited nature of the role, it’s fair to ask if the position of Counsellor of State needs to be strictly limited to people at the top of the line of succession. In practice, the Sovereign would probably still turn to them even if they had a free choice but loosening the rules would allow more flexibility. It would avoid the need for a new Act of Parliament every time the rules needed to be tweaked. Viscount Stansgate tabled an amendment that would have allowed the King to designate additional Counsellors by an Order in Council subject to affirmative procedure. However, like Lord Berkeley, he withdrew it when it became clear that the Government wouldn’t support it.

The practice of requiring Counsellors of State to act in pairs could also be done away with. The fact that Prince Charles could only open Parliament alongside his son must’ve struck the casual observer as more than a little odd. There’s no real justification for the ‘buddy system’ beyond the fact that it’s tradition.[6] When Elizabeth II traveled to Malta in 2015, she allowed a single Counsellor to perform investitures though they had to act jointly when carrying out other royal functions. However, an investiture is a purely ceremonial matter, and it’s not clear if the Sovereign’s constitutional functions could be entrusted to a single Counsellor.[7] However, before the Regency Act 1937 created a statutory regime for the delegation of royal power, the Prince of Wales frequently presided over the Privy Council when Edward VII was out of the country and he did so on his own.[8]  

Allowing a single Counsellor to act could also make things easier if they ever needed to make a substantive decision. It’s simply a matter of custom that they’ve mostly been confined to routine matters until now, and they could one day be forced to assume a larger role. But the law is silent as to how they could arrive at a decision if that were necessary, and it doesn’t address what happens if the Counsellors themselves can’t agree on a course of action. They may not be able to seek direction from the Monarch, especially if the Sovereign is ill.[9] Ministerial advice may not be an option, either.[10] In extremis, it would be possible to get around the situation by declaring a regency, but that would take time.[11] It may seem silly to worry about far-fetched scenarios, but it’s always a good idea to prepare for the worst.[12]

It’s also fair to ask if Counsellors of State need to have their powers restricted by statute. The 1937 Act prohibits them from dissolving Parliament except on the express instructions of the Sovereign and granting any peerages.[13] If the Monarch was unable to give permission, Parliament couldn’t be dissolved unless they recovered or a regency was declared. The power to confer peerages is less important, but that prohibition could still cause difficulties (e.g., if the Government wanted to appoint someone to the House of Lords so they could take office as a minister).

It’s important to get the law surrounding Counsellors of State right because they could play an increasingly important role in the years to come. As people live longer, it bolsters the likelihood that a typical reign will end in a period of senescence. The obvious solution is to engage in the sort of ‘job sharing’ that marked the late Queen’s final years. She didn’t delegate her constitutional functions (aside from a single State Opening), but her successors may wish to do so without triggering a formal regency.[14] Opening up the pool of candidates, allowing a single Counsellor to act, and removing unnecessary restrictions on their powers could prove helpful if they were ever needed for an extended period of time.   

The Government has signaled that it wants to get the Counsellors of State Bill onto the statute book as quickly as possible, so substantive changes to the role are unlikely to happen any time soon. But with a 74-year-old King on the throne, it would be prudent to make sure the law is as robust as possible without too much delay.    

[1] Puzzlingly, the Bill refers to Prince Edward as both ‘Earl of Wessex’ and ‘Earl of Wessex & Forfar,’ though the latter style is restricted to the preamble which quotes the King’s Messages to Parliament. Prince Edward was initially created Earl of Wessex in 1999, and in 2019 he received the additional title of Earl of Forfar. At the time, the Palace implied that the title was only for use in Scotland, but lately he’s been using both titles.

[2] See section 6(2) of the Regency Act 1937.

[3] Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1997), 49.

[4] HL Debates, 21 November 2022, col. 1184.

[5] Previously, Lords Commissioners would open Parliament if the Sovereign was indisposed. They are peers who are Privy Counsellors, and they also signify the Sovereign’s Assent to legislation and prorogue Parliament at the end of a session.

[6] Historically, the minimum number of Counsellors required to act sometimes varied. Two was the norm, but in December 1928, George V required them to act as a trio. The practice of requiring multiple individuals to deputize for someone else can be found elsewhere in the British constitution. For example, Prorogation and Royal Assent are entrusted to three or more Lords Commissioners while Commissioners of the Great Seal must act in pairs or trios depending on what they’re doing.

[7] Rodney Brazier has argued that this is possible, see his “Royal Incapacity and Constitutional Continuity: The Regent and Counsellors of State,” in The Cambridge Law Journal, Vol. 64, No. 2 (Jul., 2005), 379. However, the fact that Prince Charles had to open Parliament alongside his son in May 2022 suggests that HM Government may have taken a different view.

[8] According to Sir Almeric FitzRoy, similar arrangements had been in place during the last years of Victoria’s reign, though it’s not clear if the power was ever exercised. See FitzRoy, Memoirs, vol. 1, (London: Hutchinson & Co, n.d.), 59. It’s also interesting to note that, in 1906, Edward had been forced to allow the Lord Chancellor, the Prime Minister, and the Lord President to hold Councils on his behalf because the Prince of Wales was unavailable. However, he required the politicians to act as a triumvirate. This may have been a way to alleviate the perceived awkwardness of entrusting the Sovereign’s power to mere subjects.   

[9] Brazier cites the illnesses of George V in 1928 and 1936 and George VI in 1951 as cases where the Monarch wasn’t able to direct the Counsellors of State. See Brazier, 384.

[10] For example, if the Prime Minister died in office, the Counsellors of State would need to appoint a successor. While they could seek input from the Cabinet, things could get dicey if the Cabinet couldn’t agree on a successor and different factions recommended different candidates. It’s also possible that a Prime Minister could once again try to weaponize prorogation, forcing the Counsellors of State to decide whether or not to grant the request.

[11] There has never been a regency under the terms of the 1937 Act, so its provisions have not yet been tested.  

[12] That’s why there’s such a thing as the Civil Contingencies Act 2004.

[13] See section 6(1).

[14] A regency isn’t necessarily a good solution to a senescent monarch since the Sovereign can’t voluntarily trigger it and it would effectively transfer all of their power to the regent.  

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